Brief amicus curiae filed by participants in the Openlaw/DVD forum, May 30, 2000.
Supporting Documents.












Case No.: 00 Civ. 0277 (LAK)


The undersigned participants in the Openlaw/DVD forum respectfully submit this brief amicus curiae in opposition to plaintiffs’ motion to modify the preliminary injunction and in support of defendant’s motion to vacate the injunction.

Preliminary Statement

Plaintiffs seek to extend the Court’s preliminary injunction to prohibit 2600 magazine from publishing a hyperlinked account of and commentary on its ongoing legal battle.  They ask this Court to suppress speech on the unproven assertion that the speech constitutes "providing" of what is alleged, but again not proven to be, a circumvention device.  The Court should reject this extraordinary prior restraint and, on the fuller record now available, should vacate the existing injunction.   

2600’s website does not provide a circumvention device.  It provides commentary on the Digital Millennium Copyright Act’s ("DMCA") anticircumvention provisions, criticism of plaintiffs’ legal tactics, and information about DeCSS, but it does not provide DeCSS.  Instead, 2600 uses the speech-enhancing technologies of the Web to engage its readers in a dialogue about anticircumvention and censorship.  Hyperlinks are the very core of the Web, and an integral part of online dialogue about this case, connecting readers of 2600 with other supporters of the magazine and their political statements.  As such, hyperlinks are expression that demands the full range of First Amendment protection. 

Plaintiffs demand the suppression of this hyperlink speech based on its content, a position clearly offensive to the First Amendment.  The proposed injunction would chill not only 2600’s speech, but that of hundreds of third parties.  Plaintiffs would have this Court examine the pages at the other end of every link on 2600’s website and, by barring those links the targets of which plaintiffs found objectionable, prevent 2600’s readers from communicating easily with those sites.  The First Amendment prevents this Court from aiding plaintiffs in that endeavor.

Plaintiffs’ attempt to reach links under theories of contributory liability must likewise fail.  The anti-distribution provisions of §1201(a)(2) and (b)(2) already reach the limits of contributory copyright infringement.  Plaintiffs overreach when they try to add on top of that a contributory "paracopyright" violation.  Concerns for the protection of speech should join the knowledge, intent, and foreseeability requirements of tort law to preclude from the imposition of liability on alleged violators twice removed from any potential copyright infringement. 

Interests of Amici

 As authors, developers, and users of the World Wide Web, and as students, teachers, and researchers, we write to address the threat to online speech that the proposed injunction against hyperlinking would pose.  If anyone on the Internet can become a "town crier," everyone gains a newsroom, a research library, a university, a laboratory. See Reno v. American Civil Liberties Union, 521 U.S. 844, 870 117 S.Ct. 2329, 2344 (1997).  The proposed injunction would cripple all of these.  The Internet allows people to interact in a wide range of roles only if its lines of communication--its hyperlinks--remain open.  Plaintiffs’ motion to close these links, like their interpretation of the anticircumvention provision, would deny access to information.

Hyperlinks, by facilitating access to information, give the Web its vitality as a communications network.  Using hyperlinks, a professor’s syllabus draws on current news and research; a journalist adds background and sources to an article; developers and researchers share works in progress.  Participants around the block or around the world can collaborate and converse, accessing one another’s work through hyperlinked paths.  Indeed, the Openlaw project--an online discussion of these very legal issues--has grown mainly through word-of-Web: participants discover Openlaw as they follow hyperlinks from other Web pages.   The website that serves as one of the group’s focal points consists in large part of a collection of hyperlinks drawing far-flung references together in a virtual archive.


I. Hyperlinks Are Core Elements of Expression on the Web

2600 is a new publisher in a new medium, but it is entitled to the same First Amendment protection it needs to disseminate its news and commentary as are established publishers in traditional media.  "[O]ur cases provide no basis for qualifying the level of First Amendment scrutiny that should be applied to this medium," the Supreme Court has held.  Reno v. ACLU, 521 U.S. at 870.  The Internet is a democratizing medium: "Through the use of Web pages ... [any] individual can become a pamphleteer." Id.  Hyperlinks are the paths among websites, creating the bustling street corners for distribution of those pamphlets and inviting passersby to engage more deeply with the issues raised.  The Court should not permit plaintiffs to silence these crossroads.

In seeking to expand the injunction beyond direct distribution of the DeCSS utility to hyperlinking to other websites that legally offer it, plaintiffs go beyond the bounds of law and logic.   HTML links are simply elements in a formal citation syntax, by which one website can refer to another much as a judicial opinion or legal brief refers to its precedents.  A web page with hypertext links does not "provide" the content offered at the target pages merely by referencing those pages.  Plaintiffs correctly do not seek to hold 2600 accountable for the content of linked-to pages, yet they attempt to cut the site out of the Web by denying it the ability to make references to those pages. 

A. A Hyperlink Is a Reference

Like most sites on the World Wide Web, 2600’s web pages contain hyperlinks. Visitors to a website can click on words or pictures that are hyperlinked at that website and be taken to another location, often another website that is relevant to the hyperlinked word or picture.  A hyperlink (of the form <a href=" Location">Label</a>) associates or "links" the Label with the target Location.  The link syntax is part of HyperText Markup Language ("HTML"), which also allows Web authors to format text to add emphasis or design layout.  See, e.g., HTML 4.01 specification <>.  HTML is a set of computer instructions that enhance the expressive content of speech.  In a hyperlink, Location is a reference to one of a number of other resources, most commonly another website--for which the prefix "http://" indicates that a user’s browser can follow the link with HyperText Transfer Protocol.  The Label, delimited by opening and closing "anchor" tags, may be text or an image, and is highlighted or underlined by most browsers.  The href attribute in the opening tag  ("<a ...>") gives the Location of the hypertext reference.[1]   Hyperlinks are meta-text, giving weight or shading to speech as do the stage directions that accompany a play’s script. 

By comparison, a lawyer adds to a brief "See 483 L.Ed.2d 632."  To those untrained in legal research, that (hypothetical) citation is nonsense.  To those trained, however, it says "for further relevant information, go to page 632 of volume 483 of the second edition of the Lawyer's Edition version of the United States Supreme Court reports."  The citation is both a reference and speech, even if of a particularized form understood only by those who understand legal citations.  The layperson may have no idea what it means, but those who understand legal citations know it to say that there is further support for the brief’s proposition at that location.  Clearly, that reference serves as speech.

To a Web browser, however, one might say, "See <a href="">United States v. Playboy Enter-tainment Group</a>, in which the Supreme Court recently reaffirmed that content-based restrictions on speech must be justified by a compelling state interest and must be implemented by the least restrictive means possible."  The hyperlink is a reference, but it is also speech, here saying that the proposition argued for is further supported by the linked site.

Much writing, legal and otherwise, is designed to persuade.  Other things being equal, a hyperlink has more persuasive force and credibility than an unadorned URL or case name, since the ease of access increases the likelihood that the reader will go to the linked page and see for himself that the support exists.  The legal citation and the hyperlink are both references and persuasive speech because they help to convince the reader that the speech has foundation.

By linking, the Web author often implicitly asserts that the target page is relevant to the discussion on his page.  It may be a supporting element of foundation or background, an opposing viewpoint, a suggestion for further research, or simply an item of interest.  The author may specifically disclaim endorsement of the content of the linked page, as the New York Times, <> does, but his link states that for those interested in his speech, the page to which he hyperlinks will also be of interest.

Thus, links contribute to the expressiveness of Web pages.  Plaintiffs seem to think that simply by calling them "software," they can transform hyperlinks from expressive content into unprotected non-speech. (Proposed Order ¶ 1(e))  They err. "The fact that a medium of expression has a functional capacity should not preclude constitutional protection."  Junger v. Daley, 209 F.3d 481.   Indeed, to the extent that a hyperlink is functional, because it permits a reader more easily to move between Web pages, that "function" enhances the communication.  Links allow Web authors to engage in dialogues, to add authority to their writings, and to create virtual associations of sites expressing similar opinions or disparate opinions on a unifying topic.  As the Web’s creator, physicist Tim Berners-Lee, describes it,

The dream behind the Web is of a common information space in which we communicate by sharing information. Its universality is essential: the fact that a hypertext link can point to anything, be it personal, local or global, be it draft or highly polished.[2]

To ban linking is to hamper all of these forms of First Amendment expression.

 Plaintiffs repeat an argument that has been rejected now by two circuit courts of appeals: that a functional component can negate the protection of expression.  This reasoning was flatly rejected in both Bernstein v. U. S. Dept. of Justice, 176 F.3d 1132, withdrawn by 192 F.3d 1308 (1999), and Junger v. Daley, 209 F.3d 481 (2000).  Although the Ninth Circuit decision in Bernstein was withdrawn after the export policy at issue was revised, its analysis, endorsed by the Sixth Circuit in Junger, is sound:  

[T]he government's argument, distilled to its essence, suggests that even one drop of "direct functionality" overwhelms any constitutional protections that expression might otherwise enjoy. This cannot be so. The distinction urged on us by the government would prove too much in this era of rapidly evolving computer capabilities. The fact that computers will soon be able to respond directly to spoken commands, for example, should not confer on the government the unfettered power to impose prior restraints on speech in an effort to control its "functional" aspects. The First Amendment is concerned with expression, and we reject the notion that the admixture of functionality necessarily puts expression beyond the protections of the Constitution.

Bernstein, 176 F.3d at 1142.

Links are neither automatic nor infallible: Like legal or bibliographic citations, links are precise specifications of their targets.  They are not necessarily accurate, however.  Although a library patron retrieves a precise call number from the card catalog, he may not find the book on the shelf when he heads to the stacks; it may be checked out, misshelved, or on a table nearby.  The case at the pin-cited page may not stand for what its proponent claims.  Likewise, on the 2600 Web page, at least 74 of the links are currently "broken," such that no Web page is found at their target Locations.  (Boyden Supplemental Decl.)  Moreover, the Label’s description of the content at the distant website may no longer--or never--match the page retrieved.  The author of a Web page has no control over pages on other sites to which he links, and can only describe (or misdescribe) them at the time he edits the page.

A hyperlink’s "function" is to help reduce the number of mouse or key clicks required to get from one web page to another with a web browser, making a user’s pursuit of information as seamless as possible.  If the website’s location were specified in text rather than as a hyperlink, a cut and paste operation (of several clicks) of the address into the browser would still direct the browser to the remote page.  Plaintiffs would have us believe that the Constitution permits chilling speech and threatening the heart of a global communications medium so long as an inferior method of speaking remains.  This has never been part of First Amendment jurisprudence.  Indeed, only last week, the Supreme Court reaffirmed that "special consideration or latitude is not accorded to the Government merely because the law can somehow be described as a burden rather than outright suppression."  United States v. Playboy Entertainment Group, Inc., -- U.S. --, 2000 U.S. LEXIS 3427, No. 98-1682 (May 22, 2000). 

B. 2600 Is Using Hyperlinks for First Amendment Expression and Association

Plaintiffs take particular issue with a page from 2600’s news archive describing plaintiffs’ threats and inviting supporters to "mirror" the DeCSS files, to post them not for the technically implausible purpose of copying DVDs but to help maintain the free flow of information that is needed for continued investigation of the technology.  The Web page, <>, is a protest akin to a union picket line or peaceful demonstration.  Rather than take out a newspaper advertisement with the names of its supporters, 2600 publishes a page in its Web magazine linking to their websites.  Beneath the page text, under the heading "Mirrors," is a list of websites in which each listed site is hyperlinked to its location on the Web.  Thus as advertisers in the New York Times list their sponsors, 2600 gives the addresses at which its supporters can be contacted and their speech read.  Site owners choose to express their political support not only by writing and hosting the linked web pages but by "signing" the magazine’s list and making their pages publicly visible.

The plaintiffs contend that this constitutes "distribution" of DeCSS, and that it continues 2600's role as a "supplier" of DeCSS.  Their assertions defy the common meanings of these words.  Both of these claims fail because the 2600 website does not host or offer DeCSS.  The 2600 website is as much a distributor of DeCSS as the Yellow Pages are distributors of pizza.  2600 is no more a supplier of DeCSS than the New York Times is a supplier of drugs when it reports that crack is being sold on a particular corner in Harlem or a court is by describing in an opinion materials it deems obscene and giving a volume and page number for the magazine where they are found.

The 2600 mirror list offers only information.  No 2600 resources are used to transmit DeCSS.  Once a user has retrieved the mirror list, he need have no further contact with 2600, whether or not he chooses to follow a link from the page.  If the user chooses to access the speech at one of the linked sites, his click on a link will be interpreted by the browser as a request directly to the remote site named in the "Location" tag.  Assuming that site is online, it responds directly to the user with no assistance from 2600.  The mechanical aspect of the hyperlink in facilitating the transfer of information is inseparable from its expressive function in communicating the information. 

Plaintiffs would bar 2600 from creating hyperlinks precisely for the communicative impact of those links:  The multitude of links suggests that numerous people support 2600’s fight for fair use of digital media; they express a shared view that reverse engineering justifies bypassing access controls; they imply that DeCSS is still easy to obtain and that an injunction against a single Web publisher will be ineffective to stem dissemination of DeCSS.  It is not a message plaintiffs want to hear, but it is still not one they can block from the Web. 

II. Plaintiffs Seek a Content-Based Restriction of Speech

Plaintiffs disagree with the message of 2600 and its supporters that fair use must be preserved in digital media and that information formats should be widely accessible and interoperable.  Because they dislike 2600’s opinions, they seek to enlist this Court’s aid in shutting down the lines of communication among these websites, among the individuals and groups behind them, and among citizens seeking to be informed on these issues.  They seek a content-based restriction of speech that cannot withstand the strict scrutiny such regulations demand.  Plaintiffs’ proposed injunction would chill a broad range of protected speech because its enforcement depends on an individual examination of the content presented at the other end of every link.

Plaintiffs’ attempts to bar 2600 from linking to outside sites would bar speech precisely for the message the links convey. The 2600 site explains its authors’ motivations--and these are not piracy.  As numerous declarants for defendants have shown, DeCSS is simply not a rational method for copying DVDs.  As 2600 states, however, DeCSS must be kept available to preserve access to the programming ideas it contains.  These ideas, fairly reverse engineered, have already contributed to the ongoing effort to provide a free and open source DVD player.  Yet plaintiffs would have this Court assist them in blocking competition in the manufacture of DVD players. Plaintiffs seek novel assistance in reimplementing the "block booking" practices the Supreme Court has previously rejected.  See United States v. Paramount Pictures, Inc., 334 U.S. 131, 68 S.Ct. 915 (1948).

The communicative effect of the speech in 2600’s hyperlinks--and the chilling effect that an injunction on hyperlinking would have--is not merely hypothetical.  The logs of one linked site show 343 "hits" referred directly from the 2600 page.  (See Smith Decl. Exh. B, referer log from the website <>)  Three hundred forty-three people have followed the channel of communication from 2600 to this "Banned Software Archive"--343 readers have read ideas and political expression on this third-party site that they would be unable to reach so easily if 2600 were barred from linking to it.  There is no reason to believe this site is unique among sites on the 2600 mirror list.  Rather, its logs suggest that thousands of people overall would be deterred from finding the mirror sites’ political expression if they could not get there from the listing on the 2600 site.  Plaintiffs’ suggestion that there is no harm because the hitherto-linked sites "will still exist" ignores the burden to speech of hiding the sites from public view.  Even a burden, as opposed to an absolute bar on protected speech, faces strict scrutiny.

Content-based restrictions on speech demand the highest level of scrutiny.  If laws must be struck down when they outlaw advocacy of the "duty, necessity, or propriety of violence" (Brandenburg v. Ohio, 395 U.S. 444, 447, 89 S.Ct. 1827 (1969)) or the burning of the American flag (Texas v. Johnson, 491 U.S. 397, 109 S.Ct. 2533 (1989)), mere reference to a computer program alleged to circumvent copyright or access controls clearly may not be enjoined.   The First Amendment does not countenance such a prior restraint. 

Barring hyperlinking to sites that contain, among other speech, code that itself has not yet had the benefit of a trial to determine its protected status would impose an extraordinary prior restraint on speech.  Indeed, in § 1203(b)(1), Congress specifically warned that DMCA violations would not justify prior restraints.  Against that explicit legislative caution, the Court should not enjoin linking or posting before the protected status of the underlying code has been adjudicated. See Mark Lemley & Eugene Volokh, Freedom of Speech and Injunctions in Intellectual Property Cases, 48 Duke L.J. 147 (1988).

III. Plaintiffs Cannot Demonstrate a Contributory Violation of the DMCA

Finally, plaintiffs’ claim that linking constitutes a contributory violation of the DMCA is too far outside the pale to be recognized.  While we do not dispute that courts have found contributory liability for copyright infringement, no copyright infringement is even alleged in this case.  Section 1201’s prohibition on the distribution of circumvention devices, by contrast, is already a step removed from infringement or even "unauthorized access" to copyrighted works.  Since circumvention devices are not inherently harmful, the anti-distribution provisions of § 1201(a)(2) and (b)(2) must be derived from liability for the potential copyright or paracopyright violations of those to whom devices are distributed.  We join defendants’ argument that these prohibitions already overstep First Amendment limits if they enjoin code--expressive speech.  See Junger v. Daley, 209 F.3d 481.  Taking yet another step back from the potential violations by holding 2600 contributorily liable for possibly facilitating distribution of a device that hypothetically aids infringement and if so could then potentially be used for copyright violations not only cuts a huge swath of protected speech but stretches intent and foreseeability beyond recognition. 

Section 1201(a)(1) prohibits the circumvention of technological access control measures.  When that provision takes effect, subject to the exemptions issued by the Librarian of Congress in the current rulemaking, individuals who use circumvention devices for unauthorized access to copyrighted works will be directly liable for their activities.  In addition, contrary to plaintiffs’ assertion,  Section 1201 does "expressly address contributory liability principles":  1201(a)(2) imposes liability on those who "manufacture, import, offer to the public, provide, or otherwise traffic in" access-control circumvention devices because those contribute to the violations of their users.  That provision has built into it the Sony rule exempting devices with substantial non-infringing uses.  Where the statute clearly delimits contributory liability, the Court must not craft additional layers further removed from the primary violation of access-control circumvention.  If the Court nonetheless finds the protected status of linking unclear, it must weigh the speech and creative interests as the Sony court did:

In a case like this, in which Congress has not plainly marked our course, we must be circumspect in construing the scope of rights created by a legislative enactment which never contemplated such a calculus of interests. In doing so, we are guided by Justice Stewart's exposition of the correct approach to ambiguities in the law of copyright:

"The limited scope of the copyright holder's statutory monopoly, like the limited copyright duration required by the Constitution, reflects a balance of competing claims upon the public interest: Creative work is to be encouraged and rewarded, but private motivation must ultimately serve the cause of promoting broad public availability of literature, music, and the other arts...."

Sony Corp. v. Universal City Studios, 464 U.S. 417, 431-32, 104 S.Ct. 774 (1984) (citing Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156, 95 S.Ct. 2040, 2043).

Even were "contributory violation of Section 1201(a)(2)" plausible in the abstract, plaintiffs cannot logically distinguish 2600’s Web pages and hyperlinks from protected advocacy.  Speech strongly urging a violation of the law is still protected speech, and plaintiffs cannot assert that displaying a link to DeCSS constitutes a "clear and present danger."  See Brandenburg v. Ohio, 395 U.S. at 447.  Moreover, plaintiffs’ claim that links contribute to infringement fails the Sony test, which finds contributory liability only where the alleged contributor has no "substantial noninfringing uses." Sony, 464 U.S. at 441.  2600’s links lead to pages that make political statements in text and code, whether or not their visitors download DeCSS.  As that speech and the statement made by each page’s presence do not violate the DMCA, giving access to those is a "substantial noninfringing use[]" of 2600’s links.

IV. DeCSS Fits Within the Reverse Engineering Exception of Section 1201(f), Either to Interoperate With Programs on DVDs or to Enable Interoperability of These Programs and Players on Unsupported Operating Systems

Plaintiffs incorrectly focus on the "functional" aspects of HTML in seeking to enlarge the  injunction.  Yet they ignore "functional" elements of the DVDs they seek to shield from reverse engineering.   Their error is twofold, for the First Amendment protects even "functional" speech of facts and instructions, while the Copyright Act’s protections are limited to expressive non-functional elements.  Instead, the functional elements of a DVD justify the use of DeCSS as an implement of interoperability.

By the standard of functionality by which plaintiffs refer to the HTML on 2600's website as a set of software instructions, DVDs are clearly programs as defined in Title 17: "a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result."  § 17 U.S.C. 101

While it appears to have been assumed that a DVD contains no software instructions at all, several functional elements are required on a DVD to allow the digital playing of a movie using today's technology.  These include the commands that mark the movie to enable navigation through it; the commands used to store the video in a 'compressed' format; and the disk and title keys which are actually part of the fully constituted player program that descrambles a given movie.[3]

The defense brief correctly justifies the distribution of DeCSS as a tool for fostering  interoperability between computer programs.  Interoperability, as defined in § 1201(f), refers to exchange of information between at least two programs, one of which must be independently created software.  DeCSS was created, in the words of Jon Johansen, "to add DVD support to Linux—and, of course, to other operating systems, such as FreeBSD."[4]  DeCSS was adopted by a Linux reverse engineering project, LiViD (Linux Video and DVD), for the purpose of reverse engineering the DVD format in order to create an open source Linux DVD player.  DeCSS was not created by the LiViD group, but by third parties who then made it available for a wide range of open source projects.  DeCSS allowed independently created, open source DVD players to exchange information with operating systems that did not previously support DVD technology.  It is a matter of record that DeCSS is useful in this regard.  (See DiBona Decl.)  DeCSS has also fostered interoperability between these independently created software DVD players and the software tools that are used to make or author DVDs.  

DeCSS fosters program- and platform-independent use of information created and formatted by programs—this use is directly supported in the text  of § 1201(f)(3):

[T]he means permitted under paragraph (2), may be made available to others if the person... provides such ... means solely for the purpose of enabling interoperability of an independently created computer program with other programs, and to the extent that doing so does not constitute infringement under this title or violate applicable law other than this section.  

Paragraph (2) provides

Notwithstanding the provisions of subsections (a)(2) and (b), a person may develop and employ technological means to circumvent a technological measure, or to circumvent protection afforded by a technological measure,...for the purpose of enabling interoperability of an independently created computer  program with other programs, if such means are necessary to achieve such interoperability, to the extent that doing so does not constitute infringement under this title.

The parts of this paragraph are disjunctive: The first part (before the "or") refers back to § 1201(f)(1), which speaks of circumventing a measure that "controls access to a particular portion of that program." This is the origin of the "programs only" argument. The second half of § 1201(f)(2), on the other hand, allows for much more than circumvention of access control to programs only.

Thus both § 1201(f)(2) and § 1201(f)(3) refer to interoperability with 'other' programs. A data format, which formats information shared between two programs, may be reverse engineered as well. The restriction here is that this is allowed only if it "does not constitute infringement". A purchased DVD is a mixture of programs and encrypted data formats.  The formats have been reverse engineered to enable the licensed data contained therein to be  passed between programs, allowing a purchaser to play the program he licensed by his purchase on the operating system of his choice. The distribution of DeCSS fits well under the law, when the legislative history  is taken into account.  In reading the legislative history, it is important not to take statements out of context. The "programs only" intent is accurate in the context of § 1201(f)(1),  but cannot square with the intent of § 1201(f)(2) and § 1201(f)(3).  The House of Representatives report puts special emphasis on "small software developers" where it discusses what became § 1201(f)(3).  Open source software projects depend on the volunteer efforts of unpaid programmers who devote their time to giving to the commons. This is the archetype of a "small software developer" that makes § 1201(f)(3) most applicable. 

Similarly, § 1201(f)(3) recognizes that developing complex computer programs often involves the efforts of many persons.  For example, some of these persons may be hired to develop a specific portion of the final product.  For that person to perform these tasks, some of the information acquired through the permitted analysis, and the tools to accomplish it, may have to be made available to that person.  The subsection allows developers of independently created software to rely on third parties either to develop the necessary circumvention tools, or to identify the necessary information to achieve interoperability.  The ability to rely on third parties is particularly important for small software developers who do not have the capability of performing these functions in-house.  This provision permits such sharing of information and tools.

Section 1201(f)(3) applies where, as here, reverse engineering does not otherwise constitute infringement.  DVDs are published media to which fair use rights apply.  Creation of technological circumvention measures which are useable only on purchased media are not in themselves infringing, due to fair use rights of the public.  Reverse engineering of such media is fair use, and distribution of the tools used in such fair use is sanctioned under § 1201(f)(3).


For the foregoing reasons, plaintiffs' motion to modify the preliminary injunction should be denied and the preliminary injunction should be vacated.


Dated: May 30, 2000

                                                                        Respectfully submitted,


                                                                        Margaret E. Smith


                                                                        AT HARVARD LAW SCHOOL

                                                                        1563 Massachusetts Avenue,

                                                                        Cambridge, Massachusetts 02138

                                                                        (617) 495-7547

Professors of Law

James Boyle
Professor of Law
American University Washington College of Law
4801 Massachusetts Avenue, NW
Washington, DC 20016

Rod Dixon
Visiting Assistant Professor of Law
Rutgers University School of Law
Camden, NJ 08102

Christine Haight Farley
Assistant Professor of Law
American University Washington College of Law
4801 Massachusetts Avenue, NW
Washington, DC 20016

Charles R. Nesson
Professor of Law 
Director, Berkman Center for Internet & Society
Harvard Law School
1563 Massachusetts Ave.
Cambridge, MA 02138

Malla Pollack 
Associate Prof. of Law,
Florida Coastal School of Law
Jacksonville FL 
Visiting Assoc. Prof. of  Law, 
Northern Illinois University College of Law, 
DeKalb, IL

Michael L. Rustad 
Director of High Technology Law, 
Professor of Law, 
Suffolk University Law School
120 Tremont Street 
Boston, MA 02108-4977
Participants in the Openlaw/DVD forum:
Jim Bauer
Diane Cabell
Jeremy Erwin
Paul Fenimore
Seth Finkelstein
Sham Gardner
Ron Gustavson
Richard M. Hartman
Russell Miller
Antoun Nabhan
Tim Neu
Dana J. Parker
Benjamin Reeve
Eric Seppanen
Sean Standish
Dan Steinberg
Joshua Stratton
Bryan W. Taylor
Chase Tingley
Sam Tobin-Hochstadt
James S. Tyre             
John Wilbanks
Marcia Wilbur

[1] Berners-Lee et al., Uniform Resource Identifiers (URI): Generic Syntax: RFC 2396, <>; Uniform Resource Locators (URL): RFC 1738, <>.


[2] Tim Berners-Lee, The World Wide Web: A very short personal history, <>.


[3] First, a DVD contains instructions in a computer file that accompanies the video. These instruction are typically used to create 'chapter' headings and, much like hyperlinks, to allow the DVD viewer to jump to specific points in the movie instantly.

Second, the audio and video pictures are 'compressed' using a format called MPEG2. MPEG2 video is an ISO/IEC standard that specifies the syntax and semantics of an encoded video bitstream.  These include parameters such as bit rates, picture sizes and resolutions that may be applied,  and how it is decoded to reconstruct the picture.

Finally, to decode a DVD requires three different kinds of keys: player, disk, and title keys.  The disk and title keys are found on the DVD itself, and are thus licensed when the DVD is  purchased. These keys are part of the program that decrypts CSS, and are legitimate targets for  reverse engineering under § 1201(f)(1).


[4] J.S. Kelly, "Meet the Kid Behind the DVD Hack," LinuxWorld  Magazine interview with Jon Johansen, January 31, 2000.  <>